How much dying declaration reliable as single piece of evidence to convict a person?

In Bhajju v. State of M.P., Supreme court considered the question “how much dying declaration reliable as single piece of evidence to convict a person”. Thus, this case has considerable discussion on the issue.

FACTS

Bhajju @ Karan Singh (appellant), was married to Medabai, the deceased, and was living in Niwadi, District Tikamgarh, Madhya Pradesh.

APPELLANT SIDE

• Bhajju had doubts about the chastity of his wife and often used to accuse her of having illicit relations with one Ramdas.
• she also had a lose temper and on one occasion, she had left their one month old child on a platform and had gone to her parental house along with her son, Harendra, aged about four years. It is stated that he had even reported this incident at the Police Station Niwadi, on 2nd September, 1995.

PROSECUTION SIDE

• The prosecution has alleged that besides accusing the deceased of having illicit relations, he used to ill-treat her and even question the paternity of the children born out of the wedlock.
• On the evening before the incident in question, he had beaten his wife with slipper.
• On 12th September, 1995, at about 7.00 a.m., when she was cleaning the kitchen, Bhajju poured kerosene oil on her and set her ablaze with the help of a match stick. She raised hue and cry. Ayub (PW3) and Pratap (PW2) from the neighborhood reached the spot. They took her to the hospital in the taxi where she was examined by Dr. Suresh Sharma (PW9), vide report Exhibit 14.

IST FIR

• Dehati Nalishi, Exhibit P16 was recorded on the basis of which FIR Exhibit P14 was recorded and a case was registered under Section 307[1] of the Indian Penal Code, 1860 (IPC).
• She was admitted to the hospital and was found to be having 60 per cent burn injuries and her blouse was smelling of kerosene oil at that time. Her dying declaration was recorded by the Executive Magistrate-cum- Tehsildar at about 9.10 a.m. vide Exhibit P4.
• She succumbed to the burn injuries and died on 17th October, 1995.

IIND FIR

• A case under Section 302[2] IPC was registered against the appellant-accused. After registration of the case, the Investigating Officer prepared the inquest report. Post mortem was performed and the cause of death was opined to be extensive burn injuries.
• During the investigation, statements of other witnesses including Pratap, Ayub and Lakhanpal (PW-1) were recorded and the site plan was prepared. Certain items were recovered from the site like broken bangles, match box, half burnt match sticks, clothes of the deceased, kerosene oil container, etc. Based on the ocular and documentary evidence, the Investigating Officer filed the charge- sheet before the court of competent jurisdiction. The appellant- accused was committed to the Court of Sessions where he was tried.

APPELLANT DEFENCE

The appellant put up the defence that because of her illicit relationship with Ramdas, their neighbor, and her arrogant attitude, the deceased was a difficult person to live with. However, on 12.9.1995, she accidentally caught fire and got burnt while she was preparing the food. As a result, she died and the accused was innocent.

SESSION COURT AND HIGH COURT DECISION

• Session Court- Disbelieving the defence of the accused and forming an opinion that the prosecution has been able to prove its case beyond reasonable doubt, the learned Sessions Judge convicted the accused for the offence under Section 302 IPC and awarded him rigorous imprisonment for life vide his judgment dated 9th February, 1998.

• High Court- This was challenged before the High Court. The High Court affirmed the judgment of conviction and order of sentence passed by the learned trial court and dismissed the appeal of the appellant/accused, giving rise to the present appeal.

CASE IN SUPREME COURT

In the present case, the honorable Supreme Court considered the question “HOW MUCH DYING DECLARATION RELIABLE AS SINGLE PIECE OF EVIDENCE TO CONVICT A PERSON.”

Following evidence were presented before the court,  

• WITNESSES- Ayub (PW3), Pratap (PW2) and Lakhanpal (PW1)
• BODY EXAMINATION REPORT of deceased before her death, examined by Dr. Suresh Sharma (PW9), vide report Exhibit 14.
• DYING DECLARATION, recorded by the Executive Magistrate-cum- Tehsildar. Vide Exhibit P4.
• THE FIR, Ext P-17 was registered on the basis of a statement made by the deceased referred as Dehati Nalishi, Exhibit P-16, and a case was registered under Section 307 IPC.
• THE AFFIDAVIT (Exhibit D1) stated to have been sworn by the deceased on 30th September, 1995 while she died on 17th October, 1995. In this affidavit, it was stated that at the time of swearing-in of the affidavit in the Medical College, she was more or less healthy in all respects.
• POST MORTEM REPORT, performed by Dr. S.K. Khare, PW10, and his report is Exhibit P15 which confirms the burn injuries and the death being due to these injuries.
• CRIME SCENE INSPECTION REPORT, from where Certain items were recovered from the site like broken bangles, match box, half burnt match sticks, clothes of the deceased, kerosene oil container, etc. recovered which established the fact that deceased was burnt by pouring kerosene oil.

ANALYSIS OF PROSECUTION CASE

POSITION OF EYE WITNESSES– According to the prosecution, PW3 and PW2, had reached the spot and had taken the deceased to the hospital. Thus, they were the first persons whom the deceased met and as per the case of the prosecution, she had told them that Bhajju had poured kerosene on her and set her ablaze.

Eye witnesses Ayub (PW3) and Pratap (PW2) recoreded their statement to the police, in which they stated that deceased was burnt by Appellant/Accused. But Pratab (PW-2), Ayub (PW-3) and Lakhanpal (PW-1), later declared hostile by the prosecution and subjected to cross-examination had stated that the deceased had got burnt accidentally while she was cooking food. They have denied any involvement of the appellant/accused as well as the fact that the deceased had told them that the appellant/accused had burnt her by pouring kerosene oil on her. It is a matter of common prudence that a person who had been burnt and was having 60 per cent burn injuries would not be able to go to the hospital on her own and somebody must have taken her to the hospital.

BODY EXAMINATION REPORT OF DECEASED BEFORE HER DEATH, EXAMINED BY DR. SURESH SHARMA (PW9), VIDE REPORT EXHIBIT 14.

At the hospital, she was examined by Dr. Suresh Sharma, PW9, who in his statement had recorded that he has examined the deceased and she had as many as 10 injuries on her body and that some wounds on her body which were bleeding. According to the said doctor, these injuries could have been caused by a Kada or some sharp object. The burn injuries were found to be 60 per cent. The person was burnt with kerosene oil. Lower parts of her body were burnt. Her left hand was burnt, right hand and arm were also burnt. He further stated that the statement of the deceased was recorded by the Tehsildar, on which she had put her thumb impression and that the dying declaration also had been written by the doctor declaring that she was in full senses to make the statement. In his cross-examination, this witness clearly stated that the blouse that Medabai was wearing was smelling of kerosene oil. Thus, the doctor is a witness to the dying declaration as well as to the condition and cause of death of the deceased.

DYING DECLARATION, RECORDED BY THE EXECUTIVE MAGISTRATE-CUM- TEHSILDAR. VIDE EXHIBIT P4.

The Tehsildar vijay kumar (PW5) recorded the dying declaration of the deceased. When he appeared as a witness, he admitted to having recorded the dying declaration of the deceased, which bore his signatures at A to A of Exhibit P4 and recording was in his hand-writing of what was stated by Medabai and that he added or subtracted nothing from what she had stated.

Thus, the dying declaration had been recorded by the competent officer of the executive, duly attested by the doctor and the cross-examination of both these witnesses did not bring out any legal or substantial infirmity in the dying declaration of the deceased, which could render it inadmissible or unreliable.

POST MORTEM REPORT EXIBIT 15

The post mortem of the body of the deceased was performed by Dr. S.K. Khare, PW10, and his report was Exhibit P15 which confirms the burn injuries and the death being due to these injuries. Evidence clearly showed that she tried to fight before she succumbed to the burn assault by the appellant/accused. In that process, her bangles were broken which were recovered vide Exhibit P6 from the site and she also suffered injuries which, as already noticed, were bleeding when she was examined by Dr. Suresh Sharma, PW9. Other recoveries were also made from the site, which evidences that the occurrence took place in the manner as stated by the deceased.

Honorable court stated that “it is a common behaviour that if a person is pouring kerosene on herself then the maximum kerosene will be poured on the head, face and upper parts of the body and lesser amount will reach the lower parts of the body and clothes. Contrary to this, the lower half of the body of the deceased had received more burn injuries than her upper part and, in fact, if one has to even remotely believe that Exhibit D1 could be executed by her, then on the photograph annexed to it, not even a single burn injury on her face and upper part of the body is visible. If this photograph is of a date prior to the incident then there was no occasion for the appellant/accused or the Oath Commissioner attesting the affidavit to affix this photograph on this affidavit. This document, thus, appears to have been created, thus, incapable of being relied upon by the Court.”

ANALYSIS OF APPEALLANT’S CASE

DAYING DECALRATION

The primary contention raised on behalf of the accused is that the dying declaration, Ex. P4 being the sole piece of evidence, cannot be relied upon by the courts. There is no evidence corroborating Ex.P4. As such, the concurrent judgments of conviction are unsustainable.

But we must notice that this is not a case where the dying declaration, Ex.P4, is the only evidence against the appellant/accused, the statements of the doctor, PW9 and the Investigating Officer, PW10 and the Exhibits including the site plan, post-mortem report etc., which are admissible pieces of substantive evidence, fully corroborate the dying declaration. If the deceased had poured kerosene oil on herself, then in the normal course;

1. there could not be bleeding wounds on her body,
2. broken bangles could not have been recovered from the site, in question and
3. she could not have suffered injuries on her hands and arms.

All these factors show struggle before death and this indication is further strengthened by the fact that lower part of her body had suffered greater burn injury, than the upper part.

LAW ON DYING DECALRATION

Honorable court stated that “if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused.”

Section 32 of the Indian Evidence Act, 1872 (for short `the Act’) is an exception to the general rule against the admissibility of hearsay evidence.

Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a `dying declaration’. The `dying declaration’ essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death.

The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man’s mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration.

The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in his mouth).

If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be.

The rule requiring corroboration is merely a rule of prudence. Supreme Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474]

• There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.)
• If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
• The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor)
• Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.)
• Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)
• A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)
• Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
• Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar.)
• Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P.)
• Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan.)
• Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (Mohanlal Gangaram Gehani v. State of Maharashtra.)

WITNESSES

it was also argued by the appellant/accused that the two main witnesses PW2 and PW3 as well as the brother of the deceased PW4, had turned hostile and, therefore, the case of the prosecution has no legs to stand, much less that they have proved their case beyond any reasonable doubt. This submission looks to be attractive at the first glance but when examined in depth, is without any merit. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence.

They were not the eye-witnesses to the occurrence. It is an admitted case that they were the first persons to meet the deceased after she suffered the burn injuries and had taken her to the hospital. This was their consistent version when stated before the police and even before the court. Contrary to their statement made to the Investigating Agency, in the Court, they made a statement that the deceased had told them that she had caught fire by chimney and her burn injuries were accidental. This was totally contrary to their version given to the police where they had stated that she had told them that Bhajju had poured kerosene on her and put her on fire. To the extent that their earlier version is consistent with the story of the prosecution, it can safely be relied upon by the prosecution and court.

PW4, brother of the deceased, is another witness who has made an attempt to help the accused. He stated that Medabai had died and Bhajju was his brother-in-law and she got burnt while cooking food and that Medabai had told him that Bhajju used to keep her nicely. Firstly, we must notice that all these witnesses who had turned hostile or attempted to support the accused are the neighbours or close relations of the deceased and also that of the appellant/accused. Their somersault appears to be founded on the consideration of saving a relation from receiving punishment at the hands of justice. They appear to have lied before this Court, more out of sympathy for the appellant/accused.

Secondly, that it is also not clear from his statement as to who told him that Medabai had caught fire while cooking.

These are matters of serious consequences and render the statement of all these three witnesses unreliable and undependable. Thus, these statements we would refer and rely (examination-in-chief) only to the extent they support the case of the prosecution and are duly corroborated, not only by other witnesses but even by the dying declaration and the medical evidence.

DECISION OF THE COURT/ANALYSIS

Honorable Supreme Court found no ground to interfere in the concurrent judgments of conviction and order of sentence. Thus, held appeal as without merit and dismissed accordingly.

The court decision appropriate, it clearly shows from the facts of the case and witnesses’s behavior that appellant used his force to burnt his bride. If dying declaration was without lack then it should be admissible.

[1] 307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. 

[2] 302. Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment for life. and shall also be liable to fine.